House Democrats’ Backhanded Compliment to Attorney General Barr

House Democrats on the Judiciary Committee are in an uproar because Attorney General William Barr has objected to answering questions from staff lawyers. But the Attorney General is on good ground. The Executive, after all, is a separate and equal branch of the federal government. 

The Attorney General volunteered to appear and testify—as he did before the Senate Judiciary Committee. But House Judiciary Committee Chairman Nadler insisted on a format that involved questioning by non-members. He upped the ante last week telling reporters that Mr. Barr seemed to be “very afraid” of sustained questioning by staff. But “very afraid” is not the description that comes to mind when one views the Attorney General’s six hours of testimony before the Senate Judiciary Committee. 

That smear, moreover, is altogether ironic given that 18 Democrats who sit on the House Judiciary Committee are themselves lawyers—from places like Harvard, Michigan, New York University, and Georgetown. And of course Chairman Nader also boasts a JD at the end of his name. Presumably the juris doctorate initials are one reason for these representatives’ assignment to the judiciary committee.  And it’s a bit embarrassing to think that none of the lawyers on the Judiciary Committee feel comfortable questioning Mr. Barr. 

By way of background, the Constitution does not itself provide Congress with the power to investigate or issue subpoenas. Instead, the Supreme Court has long held that Congress possesses both powers pursuant to the Necessary and Proper Clause. In 1927, for example, the Court held that “the power of inquiry — with process to enforce it — is an essential and appropriate auxiliary to the legislative function.” In other words, Congress’s power to investigate and compel testimony must be in pursuit of a legitimate legislative purpose. 

But this investigatory authority is not without limits. A witness may not be compelled to give incriminating testimony in violation of the Fifth Amendment. Further, a witness’s First Amendment interests must be balanced against Congress’s need for the requested information. And the Supreme Court has held that the Due Process Clause applies to congressional efforts to enforce a subpoena criminally.

Constitutional protections against congressional subpoenas do not apply only to individuals.  The courts have recognized that the Executive Branch also has rights vis-à-vis congressional investigations, most notably the defense of Executive Privilege.

The assertion of Executive Privilege in response to a congressional request has a long and storied history. In March of 1796, for example, the House of Representatives requested that President George Washington disclose documents and correspondence relating to the negotiation of the Jay Treaty with Great Britain. President Washington refused, noting that while the papers had all been provided to the Senate, the House had no legitimate claim to them: “To admit, then, a right in the House of Representatives to demand, and to have, as a matter of course, all the papers respecting a negotiation with a foreign Power, would be to establish a dangerous precedent.”

Further, whereas Congress has broad legislative latitude when it seeks to compel testimony from individuals, the federal courts have set a high bar for congressional needs to override executive branch confidentiality concerns, at least where presidential communications are involved. The D.C. Circuit, for example, refused to order disclosure of the Nixon tapes to Congress (despite the Supreme Court’s determination that the tapes must be disclosed to a grand jury) because the committee could not meet the requirement that “the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the Committee's functions.”

Moreover, the D.C. Circuit has directed the branches make a good faith effort to work things out in the course of congressional investigations. Thus, when faced with a dispute “each branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation.”

It is hard to see how the House Judiciary Committee “needs” a staff lawyer to question the Attorney General when so many Democratic members are themselves lawyers.  At the end of the day, the House’s insistence that someone else question the Attorney General may best be described as a backhanded compliment to Mr. Barr.

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